and reinforce each other. Only if the application of the [CBD] does infringe upon the
rights or obligations of States, the law of the sea rules prevail.”
94
This necessity for the regimes to supplement and reinforce each other is also
found in the nature of the two regimes. As a matter of fact, the law of the sea and
biodiversity law have different aims. The former focuses mostly on regulating the
use of resources, while the latter puts the emphasis on preservation. Moreover, the
two regimes are not completely coherent, as they come from two different “generations”.
95 Facing this different nature, the watchwords remain compatibility and
collaboration. And this is even more important considering the requirement that the
ILBI “should not undermine existing relevant legal instruments and frameworks and
relevant global, regional and sectoral bodies”.
96 Although the scope of this “not
undermine”-condition still triggers some uncertainties,
97 it will impact the way the
CBD and the ILBI interact, influence, and complement one another. This could also
potentially impact the cooperation that the CBD maintains with organizations that
have law of the sea related mandates, such as the Food and Agriculture Organization,
Regional Fisheries Management Organizations (RFMOs) and other regional seas
agreements.
98 The ILBI could, once again, become an instrument of complementarity, which would expressly put the focus on biodiversity in a law of the sea context.
The ILBI is therefore seen as a potential bridge between the two regimes.
4 Institutional Arrangements of the ILBI
This section analyses the third pillar of the ILBI: the institutional arrangements that
would operationalize its relationship with other instruments. The question to be
answered in this section is whether the institutional arrangements of the ILBI should
be global, regional or hybrid in character. As indicated in the discussions of the
PrepCom and IGC 1 and the “President’s aid to negotiations”, there are three
approaches for the institutional arrangements of the proposed ILBI:
• Option 1—Global Model: A global institution with a meeting or conference of
parties would be established under the ILBI to undertake scientific advice,
decision-making, review and monitoring of implementation.
99 States parties to
the ILBI would become the members of this global institution and thus participate
in these activities.
100 The decisions adopted by the global institution would be
94 Id., p. 476.
95 Id., pp. 464, 473–474, 477.
96 UNGA Res 72/249 (2017), para 7; PrepCom (2017), p. 9.
97 See, generally, Scanlon (2018).
98 Robinson and Kurukulasuriya (2006), pp. 226–227.
99 DOALOS (2017b), paras 94, 121, 241; See also IGC (2019), pp. 23, 57–58.
100 DOALOS (2017b), Ibid.
366
C. Blanchard et al.
rights or obligations of States, the law of the sea rules prevail.”
94
This necessity for the regimes to supplement and reinforce each other is also
found in the nature of the two regimes. As a matter of fact, the law of the sea and
biodiversity law have different aims. The former focuses mostly on regulating the
use of resources, while the latter puts the emphasis on preservation. Moreover, the
two regimes are not completely coherent, as they come from two different “generations”.
95 Facing this different nature, the watchwords remain compatibility and
collaboration. And this is even more important considering the requirement that the
ILBI “should not undermine existing relevant legal instruments and frameworks and
relevant global, regional and sectoral bodies”.
96 Although the scope of this “not
undermine”-condition still triggers some uncertainties,
97 it will impact the way the
CBD and the ILBI interact, influence, and complement one another. This could also
potentially impact the cooperation that the CBD maintains with organizations that
have law of the sea related mandates, such as the Food and Agriculture Organization,
Regional Fisheries Management Organizations (RFMOs) and other regional seas
agreements.
98 The ILBI could, once again, become an instrument of complementarity, which would expressly put the focus on biodiversity in a law of the sea context.
The ILBI is therefore seen as a potential bridge between the two regimes.
4 Institutional Arrangements of the ILBI
This section analyses the third pillar of the ILBI: the institutional arrangements that
would operationalize its relationship with other instruments. The question to be
answered in this section is whether the institutional arrangements of the ILBI should
be global, regional or hybrid in character. As indicated in the discussions of the
PrepCom and IGC 1 and the “President’s aid to negotiations”, there are three
approaches for the institutional arrangements of the proposed ILBI:
• Option 1—Global Model: A global institution with a meeting or conference of
parties would be established under the ILBI to undertake scientific advice,
decision-making, review and monitoring of implementation.
99 States parties to
the ILBI would become the members of this global institution and thus participate
in these activities.
100 The decisions adopted by the global institution would be
94 Id., p. 476.
95 Id., pp. 464, 473–474, 477.
96 UNGA Res 72/249 (2017), para 7; PrepCom (2017), p. 9.
97 See, generally, Scanlon (2018).
98 Robinson and Kurukulasuriya (2006), pp. 226–227.
99 DOALOS (2017b), paras 94, 121, 241; See also IGC (2019), pp. 23, 57–58.
100 DOALOS (2017b), Ibid.
366
C. Blanchard et al.